1601-01-U Cynthia Ababio, Applicant v. Canadian Union of Public Employees Local 967, Responding Party and CSA International, Intervenor

BEFORE: Mary Anne McKellar, Vice-Chair

DECISION OF THE BOARD; October 17, 2001

[1]. This is an application under section 96 of the Labour Relations Act, 1995 ("the Act") alleging a contravention of section 74 of the Act.

[2]. In its response dated September 12, 2001, the responding party seeks to have the application dismissed without a hearing pursuant to section 99(3) of the Act. Additionally it submits that the matter should be dismissed for delay.

[3]. By decision dated September 25, 2001, the Board (differently constituted) directed the applicant to "respond to CUPE's position if the applicant desires to continue to pursue the application" and to specify where she agreed and disagreed with the statements contained in Schedule A to CUPE's response. The Board further directed the applicant to file and deliver these submissions "within two weeks of the date of this decision".

[4]. In its intervention dated September 25, 2001, the intervenor also seeks to have the application dismissed without a hearing, stating that "there is nothing on the face of the complaint itself that would even establish a prima facie basis for the claim that the applicant has not been fairly represented by the union" and "the employer submits that this matter can be dismissed upon the basis of the written materials alone".

[5]. Notwithstanding the Board's decision of September 25, 2001, the applicant has not filed and delivered submissions responsive to CUPE's request for summary dismissal of the application.

[6]. Section 74 of the Act provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[7]. Pursuant to section 99(3) of the Act, the Board is not required to hold a hearing to determine a complaint that a trade union has failed to comply with its duties under section 74 of the Act.

[8]. The applicant's employment was terminated by the intervenor effective October 23, 2000 following the intervenor's investigation of the applicant's conduct at a charity silent auction at which she had volunteered. The termination letter dated October 23, 2000, indicates that fellow employees believed that the applicant "improperly benefited from the auction as a responsible volunteer, accountable for helping run the auction", and that the intervenor accepted their version of events over that offered by the applicant. The letter further characterized the applicant's behaviour as "an unacceptable betrayal of the trust and confidence CSA International and your fellow employees had placed in [her]". In a nutshell, the objectionable behaviour in which the applicant was alleged to have engaged involved replacing the actual bid sheets used at the auction which showed that other persons had been the successful final bidders on certain items with ones that showed herself as not only the successful, but indeed the only, bidder on those items.

[9]. The responding party filed a grievance in respect of the applicant's termination. This grievance proceeded to arbitration before Professor Paul Craven. After two days of hearing on January 23 and February 1, 2001, Professor Craven issued an award dated February 19, 2001 in which he dismissed the grievance. In his award Professor Craven noted that the dispute turned almost entirely on an assessment of credibility, and he found that "the testimony of the Employer witnesses is to be preferred to that of the grievor in every material particular". He also noted serious internal inconsistencies in the grievor's own account of events. The Craven award found that the auction items in dispute were the most desirable items available, and he accepted the evidence of witnesses that they had been one of several bidders on those items, had been the successful bidder, and had bid amounts in excess of what the applicant bid pursuant to the bid sheets that showed her as the successful bidder.

[10]. In a letter dated July 6, 2001, the National Representative for the responding party advised the applicant that the Craven award had been reviewed by its Legal and Legislative Representative, who had "concluded there were no grounds for appeal". The letter further advised the applicant that there was no basis for a further grievance and alerted her to the possibility of proceeding pursuant to section 74 of the Act if she was dissatisfied with the union's response.

[11]. By memorandum entitled "judiciary review" and dated July 25, 2001, the applicant indicated to the national Representative of the responding party that she intended "to file an appeal with the Human Rights Commission and the Ontario Labour Board".

[12]. This application was delivered to the responding party on August 28, 2001 and filed with the Board on August 30, 2001. Attached to the application are various documents, including all of the ones that have been quoted or referred to earlier in this decision. Among those documents was one dated August 27, 2001, a seven-page single-spaced typed narrative of certain events surrounding the applicant's employment with the intervenor, her termination, and the responding party's representation of her with respect to that termination. Her concerns with respect to the responding party's representation of her as gleaned from that document and the application form itself appear to be the following:

• that her grievance would be lost if handled by the Local president rather than by a lawyer;
• that the Local president had failed to keep her chosen union representative, Bill Dix, informed of meetings pertaining to her grievance, such that she had been denied the right to be represented by him; and
• that she had provided the National Representative of the responding party with the names of three witnesses who would testify on her behalf, but that after speaking with them he had formed the view that their testimony would not be helpful and had failed to call any witnesses other than herself.

[13]. In the application form itself (Form A-29), the applicant has requested the following remedies:

I was denied witnesses at the hearing so I would like a judiary [sic] review and would like my job back. I have attached my initial grievance with CSA and would like to apply not loosing [sic] anything.

[14]. At this point, the Board notes that the applicant's August 27, 2001 narrative contains a number of assertions respecting the conduct of the intervenor. In particular, the applicant asserts that she was one of the few black employees working for the intervenor, compares her treatment at various times to that of fellow workers, and suggests that she was treated disadvantageously because of her colour. None of these allegations are pertinent to the section 74 application before the Board, which deals exclusively with the quality of the responding party's representation of the applicant vis-à-vis the intervenor. There is no suggestion that the responding party discriminated against her because of her colour. The Board also notes that the narrative contains vague suggestions of hostility on the part of the arbitrator. These allegations are also not pertinent to and cannot found a contravention of section 74.

[15]. In Kenneth Edward Homer, [1993] OLRB Rep. May 433, the Board wrote as follows with respect to the general ambit of the section 74 duty imposed on a trade union:

5. ... In Canadian Merchant Service Guild V. G. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 SCR 509 at page 527, the Supreme Court of Canada reviewed the principles applicable to a trade union's duty of fair representation as follows:

6. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

7. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

8. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of the consequences for the employee on the one hand and the legitimate interest of the union on the other.

9. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

10. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

[16]. In Ford Motor Company, [1973] OLRB Rep. Oct. 519, the Board recognized that laypersons usually conduct the union's affairs and such persons may not have the skills or training of a lawyer:

This Board does not decide cases on the basis of whether a mistake may have been made or whether there was negligence, nor is the standard based on what this Board might have done in a particular situation after having the leisure and time to reflect upon the merits. Rather the standard must consider the persons who are performing the collective bargaining functions, the norms of the industrial community and the measures and solutions that have gained acceptance with that community. (at paragraph 40)

[17]. Three previous Board decisions appear to be particularly applicable to this applicant's concerns with respect to the quality of her representation before arbitrator Craven. In Smith & Stone (1982) Inc., [1984] O.L.R.B. Rep. Nov. 1609, the Board held that a union did not breach its duty of fair representation in the course of arbitration proceedings when it failed to pursue a certain line of legal argument of which it was unaware. The Board wrote:

[18]. The evidence makes it clear that Mr. Kenny [the union representative] simply had no awareness of the jurisdictional argument that may have been available to the complainant regarding her possible right to grieve the merits of her discharge. Although Mr. Kenny did some legal research in the preparation of the case, the material he consulted did not reveal to him this possible argument. However, on the basis of the interpretation he developed of the collective agreement without knowledge of those cases, and having regard to the materials he did consult, Mr. Kenny came to a decision that the complainant's best chance of success before an arbitrator would be to try to establish that she was not in fact a probationary employee because the attempt to extend her probation had been voided for lack of notice by the company. That was the main strategy he intended to pursue at the arbitration. When the parties seized upon the arbitrator's suggestion to narrow the issues at the arbitration hearing, that became the only issue that needed to be pursued before the arbitrator. The fact that the grievance did not succeed is not proof of any deficiency in Mr. Kenny's representation. Instead, it is a result of the arbitrator arriving at a decision based on the facts that were established before him and the legal principles that he applied to those facts. Further, the fact that another legal argument or approach may have been available to the complainant does not establish a defect in the union's representation of the complainant. Certainly, Mr. Kenny's position before this Board would have been stronger if he had considered the jurisdictional argument and consciously rejected it as an inferior strategy. Had he done so, absolutely no fault could have been found in his approach. However, the fact that he did not do so does not amount to evidence of a "non-caring attitude" or a "summary approach" that can be considered to be "reckless, capricious or grossly negligent". The mere fact that he was not aware of such an argument or did not discover such an argument does not amount to arbitrariness. We reach this conclusion because on the basis of the facts and the information available to Mr. Kenny and which Mr. Kenny was aware of, he considered Mrs. Hall's case carefully and put his mind to the case and made a reasonable decision as to how to best present the case to the arbitrator. He also did this in a manner which is completely consistent with the experience and level that this Board would exact from a union official in his capacity. To decide otherwise, would be to essentially second guess Mr. Kenny in retrospect with the calmness that time affords and with the advantage of having the insight into Professor Brandt's [the arbitrator's] conclusions.

18. In John Glykis, [1988] O.L.R.B. Rep. Mar. 289, the Board considered an allegation that the union was in breach of its duty of fair representation when it failed to call a particular witness to testify at the arbitration hearing, notwithstanding the grievor's insistence that it do so. The circumstances are sufficiently similar to the ones in this application that a brief summary of them will be useful. The grievor Glykis was a hotel employee. He was discharged because of his rude behaviour with hotel guests. The final incident relied on by the employer to justify the discharge allegedly occurred in the hotel lobby and was witnessed by the bellhop, who was called as a witness by the employer. The arbitrator preferred the bellhop's evidence to that of the grievor. The grievor alleged that the union should have called another employee as a witness. This employee witnessed an incident involving the grievor and a hotel guest that occurred outside of the hotel. Although the employee's evidence in respect of that incident might have been favourable to the grievor, it had nothing to do with the incident relied on as justifying his discharge and the union decided not to call it on the basis that it was irrelevant. The Board reviewed the above circumstances and wrote:

19. Paliare's [union counsel's] decision not to call DiCarlo [the witness] was a judgement call based on his training and experience as a lawyer together with his understanding of the particular circumstances of the case before him. It was his view that any evidence DiCarlo could give relating to what happened outside the hotel would not be of assistance to Glykis when the hotel was relying on only what occurred inside the hotel between Glykis and the guest. Paliare discussed whether to call DiCarlo with Glykis on more than one occasion and explained why it was unnecessary to call DiCarlo as a witness. The decision not to call DiCarlo was not made on the spur of the moment, nor without a consideration of the case Local 75 had to meet. . . . In fact, when one reviews all the circumstances, the Board is satisfied that the decision not to call DiCarlo was not only made with an absence of bad faith, discrimination and arbitrariness, but was the correct decision. Having heard the evidence DiCarlo presumably would have given at the arbitration hearing if he had been called, the Board is satisfied that such evidence would not have affected the result in that case. It is clear from reading the arbitration award that the grievance failed because the arbitrator believed Geroge's [the bellhop's] and not Glykis' evidence relating to the events which occurred inside the hotel.

[19]. Finally, in Teresita Lanuza, [1997] O.L.R.B. Rep. Aug. 615, the Board commented as follows in dismissing an application alleging a breach of section 74 of the Act that was premised on the union's failure to adopt the grievor's preferred litigation strategy:

7. The board has carefully considered the arguments presented and the materials filed and has concluded that the union has not violated the Labour Relations Act, 1995. The union did not present the arbitration case as the applicant wanted it presented. However, the union has carriage of the grievance at the arbitration stage and is entitled, indeed is obligated, to determine how best to present the case, for the individual grievor, other members of the bargaining unit and the association itself. It is obliged to carefully consider the grievor's suggestions with respect to how to present the case, what evidence to call and what argument to make. But it is not obliged to follow "instructions" from the grievor as to how the case is to be presented provided it does fairly and carefully consider her suggestions. There does not appear to be any doubt that the union did consider the applicant's suggestions. The materials filed, including materials filed by the applicant after the hearing, indicate that the applicant's concerns were repeatedly brought to the union's attention and were discussed. However, the union made a decision to focus on other aspects of the grievance. It argued that the grievor's actions were not serious enough, if proved, to warrant discharge, it also made a "poisoned work environment" argument and a "differential treatment" argument. It is obvious upon a thorough reading [of] both arbitration decisions that he representation of the applicant by the union was vigorous and thorough.

[20]. Turning once again to the facts set out in this application, the Board notes the assumption in the Ford Motor Company, supra case that the majority of the union's representation of bargaining unit members is performed by laypersons. To the extent that this application suggests that the responding party was in breach of section 74 of the Act in not hiring a lawyer to represent her, that allegation is not well-founded. With respect to the applicant's concerns about the ability of the Local president to represent her at the grievance, the Board notes that in fact the grievance was presented by the National Representative of the responding party. There is no allegation of any deficiency with respect to that representation, other than his decision not to call the witnesses she had identified. This issue is addressed in the following paragraph.

[21]. The applicant attached to her application letters dated June 20, 2001 from two of the persons she had identified as witnesses and which contain information she thinks would have helped her case at arbitration. The Board notes that these letters post-date by a significant period of time both the incidents that led to the applicant's termination, and the arbitration hearing in respect of that termination, and also notes that a great deal of the wording in each letter is exactly the same. These observations cause the Board to doubt whether the content of the letters in fact reflects the testimony that these individuals would have given had they been called as witnesses at the arbitration, however, for the purposes of this decision, the Board is prepared to assume that this is the case. Upon review of these letters and the arbitration award, it appears to the Board that the grievor's case would not likely have been assisted by the evidence of these individuals, and it is almost a certainty that the outcome of the grievance would not have changed. Many of the statements in the letter amount to "character" evidence with no probative value whatsoever. The only statements that are of any possible pertinence are assertions that the letter writers saw the applicant bid on certain items at the auction, and that the applicant later called to tell these individuals that she had "won" the items. There does not appear to have been any dispute that the applicant bid on items, and the proffered witnesses do not appear to have any direct knowledge of whether the applicant was the successful bidder. As in John Glykis, supra, it is clear that this arbitration failed because arbitrator Craven did not believe the applicant. In the circumstances of this case, the failure to call the witnesses does not constitute a breach of section 74 of the Act.

[22]. With respect to the allegation that the applicant was denied her choice of union representative, the Board notes that the individual in question was to be one of a number of other union members in attendance at grievance meetings and arbitrations. There is no suggestion at all that the applicant intended for him to act as her representative at the arbitration. There is also no suggestion that she contemporaneously raised the issue of his absence from crucial meetings with anyone else from the union. This allegation does not provide a basis for finding a contravention of section 74 of the Act.

[23]. Finally, the Board notes that the remedies the applicant has requested are not ones the Board would be inclined to order. The Board cannot order the re-opening of the grievance, and cannot reinstate the grievor in her former employment. Nor would it be appropriate for the Board to order the responding party to commence proceedings for judicial review where the material filed makes it clear that the responding party has already considered this option and rejected it as unlikely of success, and where there is nothing in the application to impugn that decision as having been made arbitrarily, discriminatorily or in bad faith.

[24]. For the above reasons the Board does not find that the responding party's representation of the applicant fell short of its obligations under section 74 of the Act. This application is hereby dismissed.

"Mary Anne McKellar"

for the Board